Introduction International law based upon territorial allocation of jurisdiction increasingly fails to properly address global challenges. It lacks appropriate institutions for dealing with global public goods. This note discusses the relationship of territoriality, public goods, multilevel governance and the emerging doctrine of common concern in international law. It suggests that common concern, adopted mainly for the purpose of instigating joint action and international cooperation in environmental law, has the potential to develop into a legal principle redefining responsibilities of states vis-à-vis the production and administration of public goods beyond their own borders. The principle of common concern – while yet to be defined in terms of its contours, in particular relating to obligations to act – has the potential to partly remedy the shortcomings of territorial allocation of jurisdiction and responsibility. It will trigger appropriate incentives for international cooperation and the creation of global institutions by allowing for measured unilateral action protecting public goods vital to humankind.

Territoriality Public international law of the Westphalian State system was essentially built upon the precepts of Roman law and the remnants of feudalism. It is founded on notions of contract, torts and property which civil and common law adopted and further developed. Public international law reflects these main institutions in manifold ways particularly with respect to property rights. They provide the basis for state sovereignty, for territoriality and exclusiveness of territorial claims. The territories of the world are, with the exception of Antarctica, divided into national and sub-national territories, similar to property rights allocated among private right holders within such territories. Over centuries, claims to land and resources were met by appropriation in conquest, war and settlement. The vast expanses of the sea, covering some seventy per cent of the globe’s surface, were exposed to similar claims of mare clausum and appropriation, but eventually resulted in the doctrine of freedom of the High Seas. This regime offered freedom of navigation and communication. It allowed for unlimited exploitation of living resources beyond territorial waters, but excluded under terms of res nullius territorial appropriations of the seabed. Territorial claims concerned the territorial sea, growing from three to thirty miles commensurate with the fire power of coastal batteries (cannon-ball rule) and, in the 20th century, the Continental Shelf and the 200-mile Exclusive Economic Zone (EEZ). Threats to natural resources, in particular fisheries, were met with the enclosure movement and thus again, appropriation and territorial allocation of resources. The 200-miles- EEZ was a reaction by coastal states to overfishing by large factory fleets based in distant locations. It was perhaps the first reaction in international law to the depletion of natural resources in the 1970s and 1980s. Up to this point in time, international law had developed and operated under the assumption of endless and bountiful resources.

True, land was scarce and subject to war and conquest, and even the extinction of cultures. But full exploitation of land and resources on the basis of territorial jurisdiction of states was rarely met with limitations and not seen in any way as conflicting with nature up to the point of depletion of fish stocks and of global warming in the 1990s. International law assumed that full sovereignty over * This note partly draws from Cottier and Matteotti (2009, pp.21–47), and ongoing work and discussions within the NCCR Research Group on Climate Change. I am indebted to Dr. Justina A.V. Fischer, senior researcher and COFIT fellow at WTI/NCCR for valuable comments on a draft of this paper. The responsibility for it remains my own.

** Professor of European and International Economic Law, Managing Director of the World Trade Institute, University of Bern, and the NCCR Trade Regulation

Thomas Cottier

natural resources by all the territorial states would undoubtedly result in increased welfare and would not lead to imbalances or even destruction. There was plenty for all. It borrowed against future generations, ignoring long-term costs or without knowing them. Territorial allocation of exclusive rights over natural resources, both land and minerals, among States was considered the most appropriate regime for effective exploitation either by the State or licensed private, and often, foreign companies and investors. The process of decolonization further reinforced these assumptions. Newly independent states were naturally keen to exercise full sovereignty over natural resources. It was an important part of freedom and independence. There was no need for Common Concerns, for shared responsibility in the exploitation of natural resources neatly allocated to nation states operating under exclusive jurisdiction. Eventually, efforts to establish the doctrine of Common Heritage of Mankind in response to depletion of biodiversity and the idea of joint management of natural resources largely failed. The doctrine entails a ban on appropriation, shared benefits, peaceful use, and exclusion of military activities and weapons of mass destruction, freedom of research, environmental protection and non-discriminatory treatment. It was partly realized in the 1967 Outer Space Treaty, banning nuclear weapons in space, the succeeding 1979 Moon Treaty and the 1959 Treaty on Antarctica. The concept of shared exploitation of natural resources in the deep seabed, in particular manganese nodules, entered the 1982 United Nations Convention on the Law of the Sea with the Area (the seabed beyond national jurisdictions), but remained without practical effect. The goal of access and benefit sharing under the Convention on Biodiversity is perhaps the most important field in which the principle of common heritage had considerable influence, most recently in adopting the 2010 Nagoya Protocol. Yet, realization of common heritage remains difficult; even here, the principle of permanent sovereignty over natural resources prevailed and is firmly anchored in international law. Developing countries supported the doctrine as long it offered them better access to technology. Eventually, the interest in controlling natural resources and exploiting them prevailed in all States alike.

The pattern of exclusive, national jurisdiction over natural resources translated into reinforcing the doctrine of national sovereignty and the principle of non-interference in domestic affairs. The two are mutually supportive and create tensions with international commitments and with goals of aspiration.

While states increasingly pledged to observe universal human rights, at the same time they stressed their prerogatives of non-interference and protection of domestic affairs. Still today, the lack of effective international enforcement of human rights and the difficulties of international courts in effectively prosecuting war criminals recall how strongly the international community is still rooted in concepts of exclusive national jurisdiction.

Public Goods Territorial allocation of jurisdiction thus reinforced sovereignty of states and proved a more or less successful model for states to pursue their national interests in the organization of the exploitation of natural resources and the production of domestic common public goods. Territoriality is one of the conditions, albeit not a sufficient one in itself, for governments to produce or administer and maintain public goods. Pure public goods – like the air - are available to all and consumption does not diminish the asset (non-excludable and non-rivalrous). Public goods, however, while not excludable, are often subject to depletion and thus rivalrous, such as fisheries on the high seas. They are impure. The production of private goods, finally, essentially pertains to the private sector. Yet governments may also produce rivalrous goods, if access is limited to a certain group of people with given qualifications, or in commercial activities of public entities. Delineations between these categories are not clear-cut and are not able to capture the wealth and multitude of human activities. The point is that there is a close connection between territorial jurisdiction and the production of public goods, both pure and impure. Ideally, jurisdiction of a public entity is built around the need to produce appropriate public goods. Local, regional and national governments are assigned to produce or maintain appropriate public goods in their respective realm of influence and on their respective levels. While national and

The Emerging Principle of Common Concern: A Brief Outline

social security may be a matter for central government, communication to and from a remote village will mainly be in the hands of that community and its inhabitants. The same is true to for traditional commons and grazing rights. These are a public good of a local dimension. Others are of a regional dimension, such as a common market of a federacy, such as the United States or the European Union.

On the other side of the spectrum, we are able to identify global public goods in which all humankind shares a common interest. The preservation of international peace, legal security in international relations (the rule of law), legally secured market access rights and non-discrimination, the protection of global commons, the protection from genocide and from hunger, are goods and values shared by all of humankind. Yet, the production, maintenance and administration of these public goods and values largely lack appropriate public institutions on the global level. While the preservation of world peace is institutionally allocated to the UN National Security Council and may be accompanied by harsh sanctions, both military and economic, and market access and non-discrimination is subject to international dispute settlement and enforcement, other public goods are neither produced nor protected by appropriate international institutions. This is particularly true for global commons and basic human rights.

The depletion of fish stocks both within and outside the EEZ and global warming due to unrestricted greenhouse gas emissions under exclusive national jurisdiction and the sheer absence of jurisdiction over the High Seas and the global atmosphere, as well as continued gross violations of human rights testify to the absence of appropriate public goods, their production and management, on appropriate levels of government. The tragedy of the global commons is essentially due to the absence of an appropriate governance structure effectively dealing, in particular, with fisheries or global warming. The sum of national jurisdictions around the world does not meet the commonly aspired goals. It allows for too much free riding. Jurisdictions are able to benefit from efforts made by others without participating in burden sharing. In doing so, States are able to point to permanent sovereignty over natural resources, exclusivity of jurisdiction and to the principle of non-interference. They are responsible within the realm, and not beyond. They may pursue the tripartite goals of sustainable development at home, but will not be able to realize them in a broader, global context. The fine balance of economic, social and ecological goals calls for a global approach taking into account the needs of other countries and continents alike. It cannot be achieved in a contained jurisdiction.

Agriculture is a case in point. The pursuit of sustainable production at home cannot ignore the balance and needs in other parts of the world.

The lack of appropriate institutions to bring about these public goods on the international level leaves them largely unattained. It is in the logic of focusing on local, regional and national public goods by government that global public goods are neglected and largely left to the realm of rhetoric in the field of environmental and human rights law. The same is partly true of international economic law. Territorial jurisdiction pre-empts the production and protection of global public goods. We largely lack an appropriate framework for addressing them.

Multilevel Governance The logic of producing and managing public goods on appropriate levels of government thus does not stop at the nation state and its sub-entities, federal or unitarian. What is appropriate within the State is equally appropriate beyond its bounds. The production of global and transnational public goods was at first assigned to intergovernmental cooperation. States worked together to produce such goods by creating and operating international organizations and shared treaties. The story is well known, from early organizations to the League of Nations and the United Nations and its specialized organizations;

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